Exhibit 101
SETTLEMENT AGREEMENT AND RELEASE
This
Settlement Agreement and Release (“Agreement”), is
made and entered into as of May 31, 2007, by and among Embarq
Logistics, Inc. (“Embarq”) (formerly known as
Sprint North Supply Company), located at 600 New Century
Parkway, Gardner, Kansas, and Xfone USA, Inc.
(“Xfone”), located at 2506 Lakeland Drive,
Jackson, Mississippi, and Xfone, Inc. (“Parent”),
its parent company, located at 2506 Lakeland Drive, Flowood,
Mississippi. Where appropriate, Embarq and Xfone are referred
to herein as the “Parties”.
WHEREAS,
Embarq and Xfone are parties to the following documents and
agreements: (1) a Credit Application dated August
24, 2005, submitted to Embarq by Xfone, including Terms and
Conditions of Sale attached thereto and incorporated therein;
(2) a Quote Summary dated November 2, 2005, submitted to Xfone
by Embarq for installation of collocation facilities at
seven BellSouth central office sites in Mississippi
(the “Collocation Work”); (3) Purchase Order No.
330606 dated November 16, 2005, issued by Xfone to Embarq to
perform the Collocation Work; and (4) seven Notices of Job
Completion and Job Acceptance Forms for the Collocation Work,
each dated June 21, 2006; and
WHEREAS,
a dispute exists between the Parties as to the scope of the
Collocation Work, the manner in which it was carried out, and
the timeliness of completion, and the Parties each contend
that they have sustained damages and are owed money by the
other as a result of these disputed issues; and
WHEREAS,
the Parties intend through this Agreement to resolve all
claims and disputes associated with or related to performance
of and payment for the Collocation Work;
NOW
THEREFORE, in consideration of the mutual covenants and
agreements set forth below, the receipt and sufficiency of
which are expressly acknowledged, the Parties hereto,
intending to be legally bound, do hereby voluntarily and
freely agree, after the opportunity to consult with counsel of
their own choosing, to the following terms and conditions in
order to settle the differences between and among them as to
the above referenced matters:
1.
Settlement Amount . In consideration for the
promises set forth herein, Xfone will pay Embarq a total of
Eight Hundred Thirty Thousand Dollars ($830,000) (the
“Settlement Amount”), to be paid as
follows: (1) $415,004 to be wire-transferred
pursuant to Embarq’s written instructions
contemporaneously with the execution of this Agreement (the
"First Payment") ; and (2) the balance to be paid by a
promissory note in the amount of $414,996 executed by Xfone
contemporaneously with its execution of this Agreement in the
form attached hereto as Exhibit A (the
“Note”). The Note will provide for
payment to be made in six equal installments of $69,166, each
due on the 30th day of the month beginning on June 30, 2007
and continuing through November 30, 2007.
2.
Parent Guarantee . Contemporaneously with
its execution of this Agreement, and in consideration of the
promises set forth herein, Parent will execute a parent
guarantee in the form attached hereto as Exhibit
B.
3.
Embarq Release . Embarq, on behalf of
itself, its affiliates, its subsidiaries and divisions, and
each of their respective past, present, and future employees,
officers, directors, attorneys, representatives, predecessors,
successors and permitted assigns, absolutely, unconditionally,
completely, forever and without reservation, hereby
irrevocably releases, acquits, remises, and forever discharges
Xfone and Parent, together with their affiliates, subsidiaries
and divisions, and each of their respective past, present, and
future employees, officers, directors, attorneys,
representatives, predecessors, successors and permitted
assigns of and from any and all manner of claims,
counterclaims, costs, expenses, demands, rights, liabilities,
damages, potential actions, causes of action, suits,
judgments, decrees, controversies and the like, of any kind
and nature whatsoever, whether liquidated or unliquidated,
fixed or contingent, matured or unmatured, known or unknown,
foreseen or unforeseen, at law, in equity, or otherwise, which
Embarq has or ever had against Xfone and/ or Parent in
connection with or relating to the Collocation
Work.
4.
Xfone and Parent Release . Xfone and Parent,
on behalf of themselves, their affiliates, their subsidiaries
and divisions, and each of t
